Legal
Last Updated: November 1, 2023
Please note that our Terms of Service (the “Terms” or “Terms of Service”) were updated on November 1, 2023, and that the updated terms will apply to your Alchemy Cloud, Inc. (“Alchemy”) services upon any renewal, expansion upgrade, or additional purchase made after November 1, 2023. These Terms of Service, together with the Order Form(s) and Statement(s) of Work (collectively, the “Agreement”) constitute a binding agreement between Alchemy and Customer (each, a “party”) under which Alchemy provides Customer with Alchemy Cloud Services, Technical Account Management Services, Technical Support Services and/or Professional Services. Customer accepts and agrees to be bound by the Agreement by executing an Order Form.
1. DEFINITIONS.
As used in this Agreement, defined terms shall have the meaning accorded to such terms herein and in Exhibit A (Defined Terms) attached hereto.
2. ALCHEMY CLOUD SERVICES.
2.1 Services. Subject to and in accordance with this Agreement and the applicable Order Forms, including, without limitation, payment of all applicable fees, Alchemy will make the Alchemy Cloud Services available to Customer in accordance with this Agreement and the Service Level Agreement. If subscribed to by Customer in an Order Form, Alchemy will provide the Technical Account Management Services and Technical Support Services as defined in the Order Form. The service levels applicable to the Alchemy Cloud Services are set forth in the Service Level Agreement. In addition, Alchemy will perform the Professional Services ordered by Customer in an Order Form and/or Statement of Work executed by both parties. Each Order Form and Statement of Work shall incorporate by reference these Terms and will set forth the scope of the Professional Services, and to the extent possible, any applicable timeline and the applicable fees payable by Customer. Professional Services are not provided on a work for hire basis and any work product produced in the performance of Professional Services is owned exclusively by Alchemy.
2.2 Integrations. The Alchemy Cloud Services may support or include Integrations with certain Customer Software, Third Party Services and Supported Instruments provided by third party providers that Customer separately contracts with outside of its relationship with Alchemy hereunder. Such Integrations may be (i) developed or made available by Alchemy for an additional fee or (ii) developed by Customer through its use of APIs provided by the third party provider or its use of Alchemy’s APIs in compliance with the Alchemy Cloud API Specifications. In order for the Alchemy Cloud Services to communicate with such Customer Software and/or Third Party Services, Customer may be required to input credentials to authorize the Alchemy Cloud Services to connect to the Customer Software and/or Customer’s account with the Third Party Services in order to, solely as directed or enabled by Customer, transmit and receive information and data from such Customer Software and/or Third Party Services.
2.3 Data Security. Alchemy will (i) implement and maintain appropriate security policies, procedures and controls, including, without limitation, technical, physical, administrative and organizational controls, designed to maintain the confidentiality, security, availability and integrity of Customer’s Confidential Information, including Customer Inputs; (ii) implement and maintain systems and procedures for detecting, preventing and responding to attacks, intrusions, and system failures, and regularly test and monitor the effectiveness of such systems and procedures; (iii) designate employees to coordinate implementation and maintenance of security measurers; (iv) identify internal and external risks to the security, confidentiality, availability and integrity of Customer’s Confidential Information, including Customer Data, that could result in the unauthorized disclosure of, use of, access to, alteration of, destruction of or other compromise of same, and assess the sufficiency of policies, procedures and controls in place to control these risks; and (v) perform periodic (at least annual) penetration testing, vulnerability analysis, and threat analysis as part of its internal security assessments and reviews to identify weaknesses in its security architecture. Collectively, all of the foregoing referred to as “Security Measures”. Upon Customer’s request, Alchemy will provide Customer with a copy of the executive summary of a third party auditor’s written report of such security assessments and audits including details of findings and recommended solutions to offset the risk, subject to obligations of confidentiality. Alchemy shall, subject to obligations of confidentiality, provide Client with a copy of its ISO 27001 certification and its SOC 2 Type II report, as applicable, and any successor AICPA reports, as available, no more than annually upon written request of Client.
3. ACCESS GRANT; USERS; CUSTOMER INPUTS.
3.1 Access Grant; Users. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, the Alchemy Documentation, and each Order Form, Alchemy grants to Customer during the Term a non-exclusive, non-transferable, worldwide, revocable, nonsublicensable right to allow Users to access and use the Alchemy Cloud Services for Customer’s internal business purposes and subject to any limitations based on User type as described in Section 4.1 below. The number and types of Users who are permitted to access and use the Alchemy Cloud Services are set forth in an Order Form. If Users are Customer’s third-party independent contractors, consultants, agents or third parties with whom Customer does business, Customer agrees that such Users may not be competitors of Alchemy and Customer shall be responsible for any breach of this Agreement by any such third party. Customer will ensure that all its Users comply with the terms and conditions of this Agreement, will promptly notify Alchemy of any suspected or alleged violation of the terms and conditions of this Agreement and will reasonably cooperate with Alchemy with respect to: (i) investigation by Alchemy of any suspected or alleged violation of this Agreement, and (ii) enforcement of this Agreement. Alchemy may suspend or terminate any User’s access to the Alchemy Cloud Services upon notice to Customer in the event Alchemy reasonably determines that such User has violated any terms of this Agreement. Alchemy may suspend access to the Alchemy Cloud Services in the event a reasonable threat to the technical security or technical integrity of the Alchemy Cloud Services exists or if any amount due under this Agreement is not received by Alchemy within thirty (30) days after it was due, provided, that Alchemy will promptly restore access once the issue is resolved.
3.2 Alchemy APIs and Alchemy API Specifications. If Customer’s Order Form includes Integrations that require the use of Alchemy’s APIs, Alchemy grants Customer a worldwide, revocable, non-exclusive license, to use the Alchemy APIs and the Integrations in accordance with the Alchemy API Specifications for the sole purposes of facilitating the interoperability of the Alchemy Cloud Services with Customer Software, Third Party Services and Supported Instrument and subject to Customer’s adherence to the API Specifications. Customer agrees it will not directly or indirectly attempt to circumvent any such API Specifications. Customer acknowledges and agrees that all of the restrictions set forth in this Agreement that apply to the Alchemy Cloud Services also apply to the Alchemy APIs and the Integrations.
3.3 Customer Inputs. In its use of the Alchemy Cloud Services, Customer and its Users will submit Customer Inputs for processing by the Alchemy Cloud Services and represents, warrants and covenants that Customer and its Users have all required rights and licenses to the Customer Inputs and shall be solely responsible for Customer Inputs. Customer agrees that its Customer Inputs will not violate applicable laws or regulations, infringe third party rights, or contain any Malware. Customer grants to Alchemy a non-exclusive, royalty-free, fully paid, worldwide license, under any and all of Customer’s Intellectual Property Rights, to (directly and indirectly using its third party hosting providers, affiliates and subcontractors) host, use, serve, render, store, access, copy, test, analyze, and create derivative works of the Customer Inputs for the sole purposes of providing the Alchemy Cloud Services, Technical Account Management Services, Technical Support Services and Professional Services subscribed to by Customer. As between Customer and Alchemy, Customer owns all right, title and interest in and to the Customer Inputs and reserves all rights not expressly granted to Alchemy under this Agreement.
4. ACCESS CREDENTIALS; RESTRICTIONS.
4.1 Access Credentials; Use of Alchemy Cloud Services. Users will receive Access Credentials to access the Alchemy Cloud Services. These Access Credentials are granted to individual, named persons and may not be shared; provided, however, that Access Credentials may be permanently reassigned between uniquely identified individuals over time, but may not be reassigned so frequently as to enable the sharing of single Access Credentials between multiple Users. Each access right may be further specified in the Alchemy Documentation and on the applicable Order Form based on type of User. The technical capabilities and access rights available to each type of User within the Alchemy Cloud Services shall be as set forth in the Alchemy Documentation. Customer will at all times be responsible for all actions taken under Customer’s account or using any of its Access Credentials. Customer will require its Users to keep Access Credentials secure and confidential and will promptly notify Alchemy of any unauthorized use of any Access Credentials. Customer acknowledges and agrees that Customer’s and its Users’ access and use of the Alchemy Cloud Services is dependent upon access to telecommunications and Internet services. Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Alchemy Cloud Services, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing.
4.2 Restrictions; Use Guidelines. Customer will not directly or indirectly: (a) adapt, alter, modify, improve, translate or create derivative works of the Alchemy Cloud Services (or any part thereof including the Alchemy Technology); or (b) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code to all or any portion of the Alchemy Cloud Services; or (c) provide, maintain access to, or use the Alchemy Cloud Services in any manner inconsistent with this Agreement. Customer shall, and shall ensure that its Users will, use the Alchemy Cloud Services subject to the limited access rights granted in this Agreement and solely for Customer’s internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Alchemy Cloud Services available to any third party, other than as expressly permitted by this Agreement; (ii) interfere with or disrupt the integrity or performance of the Alchemy Cloud Services, the Alchemy Technology or the data contained therein or disrupt any servers or networks connected to the Alchemy cloud Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Alchemy Cloud Services; (iii) attempt to gain unauthorized access to the Alchemy Cloud Services or the Alchemy Technology or any related systems or networks; (iv) remove, alter or obscure any proprietary notices associated with the Alchemy Cloud Services; (v) access or use Alchemy Cloud Services in a United States embargoed country or in violation of any applicable export law or regulation (including any United States export laws and regulations); (vi) use the Alchemy Cloud Services in violation of any applicable, law, rule regulation or guideline; (vii) attempt to probe, scan, or test (including without limitation stress testing or penetration testing) the vulnerability of any system or network associated with the Alchemy Cloud Services or breach any security or authentication measures; (viii) utilize the Alchemy Cloud Services in order to (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, including material harmful to children or violative of third party privacy rights; or (c) send or store Malware; (ix) provide access to the Alchemy Cloud Services to a competitor or access or use the Alchemy Cloud Services to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions or graphics of the Alchemy Cloud Services, (c) copy any ideas, features, functions or graphics of the Alchemy Cloud Services, or (d) determine whether the Alchemy Cloud Services are within the scope of any patent; or (x) permit direct or indirect access to or use of Alchemy Cloud Services in a way that circumvents a contractual usage limit, or use Alchemy Cloud Services to access, copy or use any of Alchemy Cloud intellectual property except as permitted under this Agreement, an Order Form, or the Alchemy Documentation.
5. FEES AND PAYMENT.
In consideration for the rights granted hereunder, Customer will pay to Alchemy the fees set forth in each Order Form in accordance with the payment schedule set forth in such Order Form. Unless otherwise specified in any Order Form, all invoices issued by Alchemy will be due and payable thirty (30) days after Customer’s receipt. All fees are nonrefundable, except as expressly otherwise set forth herein, and will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes. Any fees that are not paid when due are subject to interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. All amounts payable pursuant to an Order Form and/or Statement of Work exclude taxes, levies, duties, sales and use taxes, value added tax, and similar governmental assessments of any nature excluding taxes on Alchemy’s net income and employees (“Taxes”). Customer is responsible for paying all Taxes. If Alchemy has the legal obligation to collect Taxes for which Customer is responsible, Alchemy will invoice Customer and Customer will pay that amount unless Customer provides Alchemy with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will make all payments to Alchemy free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Alchemy will be Customer’s sole responsibility, and Customer will provide Alchemy with official receipts issued by the appropriate taxing authority, or such other evidence as Alchemy may reasonably request, to establish that such taxes have been paid.
6. CONFIDENTIALITY.
6.1 Confidential Information. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to or learn from the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information whether disclosed orally, in writing or visually, that is either marked or designated as confidential or is identified in writing as confidential at the time of disclosure or which the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”). For the avoidance of doubt, the Alchemy Cloud Services, Alchemy Technology, Alchemy System Analytics, and Alchemy Documentation constitute Confidential Information of Alchemy. Further, for the avoidance of doubt, the Customer Inputs constitute Confidential Information of Customer. The Receiving Party’s obligations under this subsection will not apply to any portion of the Disclosing Party’s Confidential Information if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
6.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care; and (b) promptly advise the Disclosing Party upon becoming aware of any loss, disclosure, or duplication of the Confidential Information or of any breach of this Agreement, including, without limitation, the misappropriation of the Confidential Information. Both parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Article 6 (Confidentiality) and that the use of the Confidential Information for any purpose other than that stated herein may, among other things, enable the Receiving Party or other third parties receiving such Confidential Information to compete unfairly with the Disclosing Party. Therefore, in the event of a breach or threatened breach, the disclosing party shall be entitled, in addition to all other rights and remedies available at law or in equity, to seek (i) an injunction restraining such breach, without being required to show any actual damage or to post security or other bond; or (ii) a decree for specific performance of the applicable provision of this Agreement. Notwithstanding the termination or expiration of this Agreement, the obligations of the Receiving Party, with respect to the Confidential Information of Disclosing Party, shall be in full force and effect as follows: (A) in the case of any information or materials that constitute a trade secret within the meaning of applicable law, for as long as such information and materials remain as a trade secret, or (B) in the case of any other information or materials, during the term of this Agreement and for five (5) years following the termination or expiration of this Agreement. Customer agrees that Alchemy shall have the right to list Customer as a customer of Alchemy, use Customer’s name and logo, in Alchemy’s on and offline marketing collateral including as a customer on Alchemy’s customer lists, including a short description of the Alchemy Cloud Services provided to Customer.
7. WARRANTIES.
7.1 Warranties by Both Parties. Each party represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement; (b) the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement; and (c) that it will perform its obligations or exercise its rights hereunder in conformance with all applicable laws, rules, regulations, and guidelines, including, without limitation, those related to privacy and data security.
7.2 Alchemy Cloud Services Warranty. Alchemy represents, warrants and covenants that (i) the Alchemy Cloud Services will include the functionality provided in the Alchemy Documentation, (ii) the Alchemy Cloud Services will be regularly scanned using commercially available Malware scanning programs and identified Malware will be remediated, and (iii) the Professional Services will be performed in a professional and workmanlike manner in accordance with professional industry standards of quality and integrity. As Customer’s sole and exclusive remedy for a breach of the foregoing warranties, Alchemy will use commercially reasonable efforts to remediate the nonconformity or if Alchemy is unable to do so within a commercially reasonable period of time, either party shall have a right to terminate the affected Order Forms and/or Statements of Work and Alchemy shall refund to Customer any prepaid fees for services not performed.
7.3 Disclaimer of Warranty. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 7 (WARRANTIES), ALCHEMY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION REGARDING THE ALCHEMY CLOUD SERVICES, THE ALCHEMY DOCUMENTATION, THE ALCHEMY TECHNOLOGY, THE PROFESSIONAL SERVICES, BETA VERSIONS OF ALCHEMY CLOUD SERVICES FEATURES OR FUNCTIONALITY, OR OTHERWISE WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT OF THIRD-PARTY RIGHTS, AS WELL AS ANY WARRANTY, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALCHEMY’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, TERM, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE ALCHEMY CLOUD SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE ALCHEMY CLOUD SERVICES AGAIN.
8. INDEMNIFICATION.
8.1 Alchemy Indemnity. Alchemy shall defend (at Alchemy’s expense), Customer and its affiliates and its and their officers, directors and employees from and against any third-party claims, suits, or proceedings ( “Claims”) brought against Customer or its officers, directors or employees by a third party contending that Customer’s use of the Alchemy Cloud Services in accordance with the Alchemy Documentation infringes any Intellectual Property Rights of a third party and shall pay all damages finally awarded by a court of competent jurisdiction or agreed to by Alchemy in settlement of the Claim. In the event that the Alchemy Cloud Services or any part thereof is likely to, in Alchemy’s sole opinion, or do become the subject of an infringement related Claim, and Alchemy cannot, at its option and expense, procure for Customer the right to continue using the Alchemy Cloud Services, or any part thereof, or modify the Alchemy Cloud Services, or any part thereof, to make them non infringing, then Alchemy may terminate this Agreement with notice to Customer and will provide the Customer with a refund of any pre-paid fees for the unexpired portion of the remaining subscription term. Alchemy shall have no liability for any Claim or demand arising from (i) an allegation that does not state with specificity that the Alchemy Cloud Services is the basis of the Claims; (ii) the use or combination of the Alchemy Cloud Services or any part thereof with software, hardware, or other materials not developed by Alchemy if the Alchemy Cloud Services or use thereof would not infringe without such combination; (iii) modification of the Alchemy Cloud Services by a party other than Alchemy, if the use of unmodified Alchemy Cloud Services would not constitute infringement; (iv) use of the Alchemy Cloud Services in violation of this Agreement or the Alchemy Documentation if the claim would not have arisen but for such breach or unauthorized use; or (v) an allegation made against Customer arising out of or related to Customer Inputs, Integrations, Customer Software, Third Party Services, Supported Instruments or open source software. The foregoing states Alchemy’s entire liability and Customer’s exclusive remedy for infringement of third party intellectual property rights.
8.2 Customer Indemnity. Customer shall defend (at Customer’s expense) Alchemy and its affiliates, and its and their employees, officers, and directors brought against Customer or its officers, directors or employees by a third party from and against all Claims made or brought against Alchemy by a third party (i) alleging that the Customer Inputs, Customer developed Integrations or Customer Software infringes the Intellectual Property Rights of, or has otherwise harmed, a third party; or (ii) based upon any use of the Alchemy Cloud Services in violation of this Agreement or the Alchemy Documentation, and shall pay all damages finally awarded by a court of competent jurisdiction or agreed to by Customer in settlement of the Claim. The foregoing states Customer’s entire liability and Alchemy’s exclusive remedy for infringement of third party intellectual property rights.
8.3 Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense at the indemnifying party’s expense, and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party. Neither party shall settle any claim without the other party’s prior written consent which will not be unreasonably withheld or delayed. The indemnified party may participate in the defense of the claim at the indemnified party’s expense.
9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCLUDING DAMAGES ARISING FROM A PARTY’S MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR LIABILITY ARISING FROM THE INDEMNIFICATION OBLIGATIONS IN SECTION 8, (A) IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THE APPLICABLE STATEMENT OF WORK OR THE APPLICABLE ORDER FORM UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND (B) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES. THE FOREGOING LIMITATIONS SHALL NOT LIMIT CUSTOMER’S LIABILITY TO MAKE PAYMENT OF UNDISPUTED FEES DUE UNDER ORDER FORMS AND STATEMENTS OF WORK. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE LIMITATIONS HEREIN MAY NOT APPLY. Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement. Each party acknowledges that the fees set forth in this Agreement reflect the allocation of risk between the parties and that the other party would not enter into this Agreement without these limitations on its liability.
10. TERM AND TERMINATION. The term of this Agreement will commence on the Effective Date and remain in effect until all Order Forms and Statements of Work have terminated or expired or until earlier termination of this Agreement as provided in this Section 10 (the “Term”). The term for each Order Form and Statement of Work shall be as set forth therein. Upon termination of this Agreement for any reason, all Order Forms and Statements of Work shall immediately terminate. This Agreement and any Order Form or Statement of Work may be terminated: (a) by Customer (i) in accordance with Section 2.3 by providing written notice to Alchemy within thirty (30) days of any modification to the Alchemy Cloud Services which materially and adversely reduces the functionality of the Alchemy Cloud Services; (b) by Alchemy if Customer fails to timely make any payment due hereunder and fails to cure such default within fifteen (15) days after receiving notice in writing from Alchemy of such failure (whether or not Alchemy avails itself of its right to suspend Services pursuant to Section 3.1 hereof); or (c) by either party (the “Non-breaching Party”) effective immediately upon written notice containing an explanation of the alleged breach to the other party (the “Breaching Party”), if the Breaching Party breaches any provision of this Agreement, and does not cure the breach within thirty (30) days after receiving written notice thereof from the Non-breaching Party. Alchemy reserves the right to modify the Alchemy Cloud Services on a continuous basis and if any such modification materially and adversely reduces the functionality of the Alchemy Cloud Services, Customer may terminate its subscription for the Alchemy Cloud Services for material breach pursuant to this Section 10. Upon expiration or termination of this Agreement, Customer’s and its Users’ right to access and use the Alchemy Cloud Services will immediately terminate, Customer and its Users will immediately cease all use of the Alchemy Cloud Services, and each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. Sections 1, 5, 6, 7.3, 8, 9, 10, and 11 shall survive any termination or expiration of this Agreement.
11. GENERAL.
11.1 Governing Law; Jurisdiction. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Each party hereby consents to the personal jurisdiction and venue in the state and federal courts serving the State of California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer shall pay on demand all of Alchemy’s reasonable attorney fees and other costs incurred by Alchemy to enforce this Agreement or to collect any fees or charges due to Alchemy under this Agreement following Customer’s breach of its payment obligations under this Agreement or any Order Form.
11.2 Export; Anti-Corruption. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Alchemy Cloud Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Alchemy Cloud Services in violation of any U.S. export embargo, prohibition or restriction. Customer represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Alchemy’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Alchemy.
11.3 Severability; Waiver; Remedies. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.4 Entire Agreement. To the maximum extent permitted by applicable law, this Agreement, together with the documents referenced herein and all Order Forms and Statements of Work executed hereunder, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, (including without limitation any nondisclosure agreements previously executed by the parties), proposals or representations, written or oral, concerning the subject matter of this Agreement. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party’s only remedy in respect of any untrue statement shall be for breach of contract as provided in this Agreement. Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form or dependent upon any oral or written, public or private comments made by Alchemy with respect to future functionality or features for the Alchemy Cloud Services. In the event of any conflict between the provisions in this Agreement and any Order Form or Statement of Work, the terms of such Order Form or Statement of Work shall prevail. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Any modification to these Terms or any Order Form or Statement of Work shall require mutual written agreement of the parties.
11.5 No Assignment. Except as otherwise permitted herein, neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or change of control, including without limitation a sale of all or substantially all of its assets, stock or business to which this Agreement relates. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
11.6 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, epidemic, failure of utility, telecommunications and/or service providers or any other event beyond the control of such party (“Force Majeure Events”), provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
11.7 Independent Contractors. Alchemy’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.
11.8 Notices. All notices under this Agreement shall be in writing. All notices shall be given (i) by delivery in person (ii) by a nationally recognized next day courier service, (iii) by first class, registered or certified mail, postage prepaid, (iv) by facsimile or (v) by electronic mail to the address of the party specified in this Agreement or an Order Form. All notices shall be effective upon (i) receipt by the party to which notice is given, (ii) the second (2nd) day following sending by electronic mail or facsimile, or (iii) on the fifth (5th) day following mailing, whichever occurs first. Each party may change its address for receipt of notice by giving notice of such change to the other party.
11.9 Alchemy Intellectual Property Rights. The Alchemy Cloud Services, the Alchemy Technology, the Alchemy System Analytics, and the Alchemy Documentation and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Alchemy and its licensors. Except for the rights and licenses expressly granted herein, all rights in and to all of the foregoing are reserved by Alchemy and its licensors. Nothing in this Agreement will be deemed to grant to Customer any right to receive a copy of software platform underlying the Alchemy Cloud Services, or any other Alchemy Technology, in either object or source code form. Further, in the event Customer provides Alchemy any ideas, thoughts, criticisms, suggestions, enhancement requests, techniques, know-how, comments, feedback or other input related to the Services, the Alchemy Cloud Services or the Alchemy Technology (including Customer and its Users), (collectively “Feedback”), including without limitation in response to any product plans or roadmaps shared with Customer, unless otherwise agreed in writing prior to such disclosure, Customer grants to Alchemy a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, license, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise, and may incorporate into its services any service, product, technology, enhancement, documentation or other development (“Improvement") incorporating or derived from any Feedback with no obligation to license or to make available the Improvement to Customer or any other person or entity.
11.10 Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. A manually or electronically signed copy of this Agreement, any Order Form or any Statement of Work delivered by e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Agreement, the Order Form or Statement of Work.
11.11 Federal Government End Use Provisions. Alchemy provides the Alchemy Cloud Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Alchemy Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Alchemy to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
11.12 Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iii) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (iv) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.
Exhibit A
Defined Terms
“API” means a collection of routines, classes, function parameters, protocols, webhooks, related libraries and other instructions provided in source code or object code form.
“Access Credentials” mean login information, passwords, security protocols, and policies through which Users access and use the Alchemy Cloud Services.
“Alchemy API Specification” means a written description or definition of the APIs, routines, classes, function parameters, protocols, webhooks, related libraries and other instructions that enable the Alchemy Cloud Services to connect with Customer Software, a Third Party Service and/or a Supported Instrument as the same are updated from time to time by Alchemy.
“Alchemy Cloud Services” means the version of the Alchemy software as a service offering, including the Alchemy Content, made generally commercially available by Alchemy as of the Effective Date, and all Updates thereto made generally commercially available by Alchemy.
“Alchemy Content” means information, data, text, content, videos, images, audio clips, photos, graphics, and / or other types of content, information and/or data made available through the Alchemy Cloud Services by Alchemy, including any of the foregoing obtained or licensed by Alchemy from publicly available sources or third party providers as updated from time to time, expressly excluding Customer Inputs.
“Alchemy Documentation” means user guides, manuals and other materials, whether in print or electronic form, made available to Customer from time to time during the Term (including through the Alchemy Cloud Services) that include descriptions of User types and the features and functions of the Alchemy Cloud Services and instructions regarding the use of the Alchemy Cloud Services and Integrations.
“Alchemy System Analytics” means anonymized information, data, statistics, metadata, inferences, interrelationships, and/or associations generated or derived from the use of the Alchemy Cloud Services and/or Technology, expressly excluding Customer Inputs, and which is used by Alchemy to provide and improve the Alchemy Cloud Services and to improve the Alchemy Technology.
“Alchemy Technology” means the computer software, computer code, scripts, neural networks, machine learning, artificial intelligence, application programming interfaces, methodologies, processes, templates, reports, workflows, diagrams, tools, algorithms, formulas, user interfaces, know-how, trade secrets, techniques, designs, inventions, APIs, API Specifications, Integrations, third-party services and other tangible or intangible technical material, information and works of authorship underlying or otherwise used to make available the Alchemy Cloud Services, including, without limitation, all upgrades, enhancements, modifications, additions and improvements thereto and all derivative works thereof, and Intellectual Property Rights therein and thereto.
“Customer Inputs” means information, trial and final formulations and associated test data, text, content, videos, images, audio clips, photos, graphics, and any other types of content, information and/or data posted, provided and/or uploaded to the Alchemy Cloud Services by or on behalf of Customer and/or its Users, expressly excluding Alchemy Content.
“Customer Software” means Customer’s own proprietary software that Customer connects to the Alchemy Cloud Services using Integrations.
“Intellectual Property Rights” mean any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) registrations, applications, renewals, extensions, or reissues of the foregoing, in each case, in any jurisdiction throughout the world.
“Integration(s)” means the object code version of any components, connecters, middleware or other code that enable the Alchemy Cloud Services to connect to Customer Software, Third Party Services or Supported Instrument, including all Updates to Integrations for which Customer has purchased a subscription.
“Malware” means viruses, Trojan horses, spyware, malware, worms, time bombs, cancelbots, exploitable security vulnerabilities, disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system or data.
“Order Form” means Alchemy’s standard order form signed by an authorized representative of each party and pursuant to which Customer orders the Alchemy Cloud Services, Technical Account Management Services, Technical Support Services and/or Professional Services and which sets forth the number of authorized Users by User type and the applicable subscription fees.
“Professional Services” means any consulting services, including without limitation, requirements gathering, configuration, implementation, data migration, deployment, QA testing and/or training services and any Integration development services provided by Alchemy to Customer pursuant to an Order Form and/or Statement of Work.
“Service Level Agreement” means Alchemy’s standard service level agreement for the Alchemy Cloud Services set forth at https://www.alchemy.cloud/legal as in effect as of the date of Customer’s Order Form for the Alchemy Cloud Services and as the same may be updated from time to time; provided, that any updates shall not take effect until the renewal of such Order Form.
“Supported Instruments” means any instruments which are connected to the Alchemy Cloud Services through Integrations.
“Technical Account Management Services” means the technical account management services made available by Alchemy Cloud and subscribed to by Customer pursuant to an Order Form.
“Technical Support Services” means the technical support services made available by Alchemy Cloud and subscribed to by Customer pursuant to an Order Form.
“Third Party Services” means any software, software-as-a-service, data sources or other products or services separately procured by Customer from a third party which are connected to the Alchemy Cloud Services through Integrations.
“Updates” mean all upgrades, enhancements, improvements, maintenance releases, additions, and modifications of the Alchemy Cloud Services made generally commercially available by Alchemy to its customers as part of the Alchemy Cloud Services or Technical Support Services and any of the foregoing for which Customer pays an additional fee to Alchemy.
“User” means an individual (i) authorized by Customer to use the Alchemy Cloud Services, (ii) for which Customer has purchased a subscription and paid the applicable fees, if any and (iii) who has been assigned Access Credentials. “Users” may include, for example, employees, independent contractors, consultants and agents of Customer and third parties with whom Customer transacts business. Users may not include competitors of Alchemy.
